Water Rights and Wrongs in the Sierra

Posted by Yubanet.com News

April 26, 2008

Water law in the state of California can best be described as one of those incredibly complex multiple level chess games, with varying and not necessarily consistent rules for each level. In the crazy California water game different norms control, depending on whether ground water, riparian rights, appropriative rights, or prescriptive rights are involved (and this is short form-there are many other variations), and even whether rights were acquired before or after 1914. Add in all the various water projects, which divert water far away from its mountain origins, and its one-time inevitable flow towards the sea, to provide water for agricultural interests and urban needs, and you get an even more layered, confusing system, with consequent over appropriation of surface waters, and overdraw of groundwater.

There are many who feel the current system of water allocation in California is unfair, inefficient, and sadly broken. This year's collapse of the salmon fisheries, and the precarious situation of the Delta underscore the need to reassess how California's water is used, abused, and wasted. The debate promises to be heated, with, on one side, those who are convinced dams, and canals are a magic bandaid, and on the other side, those who favor protection of the environment, and who emphasize conservation and wise use of water over building yet another dam, and who think it's absolutely profligate to ship water to places like Westlands Water District to grow thirsty crops and forage, when that water is taken at the expense of protection of instream uses, such as keeping endangered fish out of the maws of the vast water project pumps.

There is a basic core of rationality in California's water system, though. The Public Trust Doctrine requires a balancing of consumptive and instream uses. This doctrine was successfully applied to water appropriation through the vigilance of those who fought for more than 20 years to prevent the siphoning away of Mono Lake to slake Los Angeles's thirst. Further, the California Constitution prohibits waste and unreasonable use of water. The terms "waste" and "unreasonable use" are a virtual full employment act for attorneys specializing in water law, but I'll spare you a treatise on "legally correct" usage. What I'd like to talk about is a real-life, shameful waste of water in the Sierra Nevada, up near Donner Summit.

Read more of this Op/Ed by Kathryn Gray at Yubanet.com.